DROIT FONCIER ET GOUVERNANCE JUDICIAIRE DANS LE PACIFIQUE SUD Essais Comparatistes

Transcription

1 DROIT FONCIER ET GOUVERNANCE JUDICIAIRE DANS LE PACIFIQUE SUD Essais Comparatistes LAND LAW AND JUDICIAL GOVERNANCE IN THE SOUTH PACIFIC Comparative Studies DIRECTION AH Angelo- O Aimot- Y-L Sage RJP/CLJP Hors Série/Special Issue Volume XII 2011

2 277 CUSTOMARY LAND IN SOLOMON ISLANDS: A VICTIM OF LEGAL PLURALISM Jennifer Corrin * In Solomon Islands, as well as throughout the South Pacific, land is a fundamental facet of traditional culture. Customary land in most South Pacific constitutions is acknowledged and protected, with ownership rights often being restricted to indigenous citizens, as in Solomon Islands. This article explores the effects the plural nature of society has on the protection of customary land in practice in Solomon Islands and discusses relevant case law and legislation as well as their interactions with customary law. Aux Solomon, comme dans l ensemble du Pacifique Sud, la terre revêt un aspect fondamental de la culture traditionnelle. Les constitutions ou les lois fondamentales de la plupart des Etats du Pacifique Sud reconnaissent l existence des terres coutumières et organisent leur protection. Dans cet article, à la lumière du droit positif et des principales décisions de jurisprudence, l auteur porte sa réflexion sur les conséquences du pluralisme juridique en matière foncière aux Solomon. I INTRODUCTION [L]and was an ancestral trust committed to the living for the benefit of themselves and generations yet unborn. Land thus was the most valuable heritage of the whole community, and could not be lightly parted with. This is based on the belief that departed ancestors superintended the earthly affairs of their living descendants, protecting them from disasters and ensuring their welfare, but demanding in return strict compliance with time-honoured ethical prescriptions. Reverence for ancestral

3 278 LAND LAW AND JUDICIAL GOVERNANCE spirits was a cardinal point of traditional faith and such reverence dictated the preservation of land which the living shared with the dead. 1 This statement by Zoloveke encapsulates the spiritual significance of land for indigenous peoples in the South Pacific. Throughout the region, land is a fundamental part of traditional culture. It is subject to a sacred trust that requires it to be preserved for future generations and its value cannot be encapsulated in monetary terms alone. Independence constitutions in most South Pacific countries acknowledge the significance of customary land by making special provision for its protection. In many cases, 'ownership' of customary land is restricted to indigenous citizens and alienation is forbidden, or at least restricted. 2 This is the position, for example, in Solomon Islands, where it is also specified that customary land is to be governed by customary law. 3 In practice, however, the spirit and letter of these constitutional protections have been eroded and customary land has been subjected to sweeping changes. These have come about in a number of ways but, broadly speaking, may be said to stem from the plural nature of society, which is a relic of the country's colonial history. These two very different societies, rural, village based communities on the one hand and urban societies on the other, sometimes operate independently, but often, and increasingly, overlap. This interaction gives rise to tensions and is a source of transformation for both traditional and urban 4 society. Each places different demands on customary land. There have been increasing pressures on the national government to make land available for commercial and development purposes 5 and to provide housing and facilities for migrants who move to urban centres from the * Jennifer Corrin is Director of the Centre for International, Public and Comparative Law and Associate Professor in the TC Beirne School of Law, The University of Queensland. 1 Gideon Zoloveke, in Peter Larmour (ed) Land in Solomons (Institute of Pacific Studies, University of the South Pacific, Suva, 1979) 4. 2 See, eg, Constitution of Samoa 1960 Art For the complexities of the distinction between customary law and custom see Jennifer Corrin Care and Jean Zorn, 'Statutory "Developments" in Melanesian Customary Law' (2001) Journal of Legal Pluralism, 49, 52, n 5. Given the lack of a clear dividing line between the two concepts, in this chapter the terms are used loosely and interchangeably. 4 The distinction could be made between modern and traditional, but this seems to suggest that the introduced system is progressive and to be preferred. Accordingly, the traditional versus urban distinction has been used, although it is recognised that in many urban and semi-urban areas custom may still be strong. See further, Chris Barker Cultural Studies: Theory and Practice (Sage, London, 2008). 5 See, eg, Forest Resources and Timber Utilisation Act Cap 40 (SI).

4 CUSTOMARY LAND IN SOLOMON ISLANDS: A VICTIM OF LEGAL PLURALISM 279 village for work, education and marriage. 6 In the customary sphere, the desire of more urbanised members of society to individualise land holding, together with competing claims to valuable resources, have threatened traditional authority. The complex legal pluralism in place in the Pacific has also had an impact on customary land. There is considerable debate about the meaning of 'legal pluralism'. Used in a descriptive sense, it is used to refer to 'a situation in which two or more legal systems co-exist in the same social field' 7 within the same country. Used as an analytical tool, the term may be used in the 'weak' sense, 8 to discuss co-existing legal systems from the perspective of the State and using State law concepts to define the parameters of each. Whilst this chapter does conduct its analysis by reference to the written law, to the extent that weak legal pluralism endorses a hierarchical approach, with state law at the apex and customary law nested below, 9 it is rejected in favour of 'strong' or 'deep' legal pluralism. Deep legal pluralism is an approach which resists giving supremacy to any one legal system, 10 and involves an ideological commitment to promotion of plurality of laws. 11 This chapter seeks to point out the danger of assuming the supremacy of State law. 12 The use of State law as the starting point for consideration of customary law has led to some profound changes to customary land. Some have been made overtly by legislation, but more insidious changes have crept in, sometimes inadvertently, through the misinterpretation of customary law as 6 See further Daniel Storey, 'The Politics of Managing Urban Development in Pacific Island States: The Case of Samoa and Tonga' (1998) 22 The Journal of Pacific Studies 61; 'The Peri-urban Pacific: From Exclusive to Inclusive Cities' (2003) 44(3) Asia Pacific Viewpoint Sally Engle Merry "Legal Pluralism" (1988) 22 Law & Society Review 869, John Griffiths "What is Legal Pluralism" (1986) 24 Journal of Legal Pluralism 1, Lauren Benton Law and Colonial Cultures: Legal Regimes in World History, (Cambridge University Press, Cambridge, 2002) Gordon Woodman "Ideological combat and social observation: recent debate about legal pluralism" (1998) 40 Journal of Legal Pluralism Peter Sack "Legal Pluralism: Introductory Comments" in Peter Sack and Elizabeth Minchin (eds) Legal Pluralism (ANU, Canberra, 1986) As Benton points out, such an approach to legal pluralism brings with it 'a sense of inevitability about the dominance of state law': Ibid 9.

5 280 LAND LAW AND JUDICIAL GOVERNANCE equivalent to the closest common law concept. 13 This has happened both in the legislative drafting process 14 and in the course of judicial interpretation. 15 This chapter examines the existing system of land tenure in Solomon Islands and the complex web of legislation surrounding it. It also discusses some of the most significant case law and highlights the principal problems arising from the legislation and from its interaction with customary law. Those arrangements have resulted in uncertainty and continuous disputes in some parts of the country. The question has arisen as to how these disputes should be resolved. This chapter examines the present system for dispute resolution as well as evaluating the current proposal for reform, which is to establish Tribal Land Dispute Resolution Panels in Solomon Islands. II BACKGROUND A Context, Culture and Land Solomon Islands is part of the sub-region of Melanesia, in the South West Pacific. It lies 1,600 kilometres North East of Australia and has a population of about 400,000. The land area of 30,000 sq km is divided between twenty-six islands and hundreds of small islets spread out in a 1360 km long, double chain, within a sea area of 1,340,000 sq km. In Melanesian countries, traditions vary from island to island and even from village to village. This diversity can be illustrated by reference to the sixty-five vernacular languages and dialects in existence in Solomon Islands alone. 16 Social and economic changes have had a profound impact on Solomon Island's society. Increased mobility and communications between the rural sector, the urban centres and the rest of the world have influenced perceptions. In many cases this has weakened the strength of traditional authority and posed challenges to customary rules and decision-making. 17 The extent of family or individual ownership of customary land seems to be increasing in some areas of the country. However, this 13 For an explanation of the difference between concepts and terms see Tom Bennett "Terminology and Land Tenure in Customary law: An Exercise in Linguistic Theory" [1985] Acta Juridica 173, See, eg, the use of the term 'owners' in the Forest Resources and Timber Utilisation Act Cap 40 (SI) s 7(1). 15 Allardyce Lumber Company Limited and Others v Attorney General and Others [1988/9] SILR 78, This information was supplied by John Lynch and Robert Early, University of the South Pacific. 17 See further Ron Crocombe and Malama Meleisea (eds), Land Issues in the Pacific (Institute for Pacific Studies, University of the South Pacific, Suva, 1994) Ch 1.

6 CUSTOMARY LAND IN SOLOMON ISLANDS: A VICTIM OF LEGAL PLURALISM 281 impression may be partly due to Chiefs and leaders representing rights of control as rights of individual ownership. In Solomon Islands, changes in society have given rise to particularly serious issues relating to land. The relationship of indigenous people to their land is part of a complex social system, bound up with culture and tradition. As stated by Bonnemaison in relation to Vanuatu: 18 [C]ustom land is not only the site of production but it is the mainstay of a vision of the world. Land is at the heart of the operation of the cultural system. It represents life, materially and spiritually. The relationship between the land and the needs and practices of those who rely on it for their livelihood is a two way process of change. As stated by Crocombe, '[l]and tenure is shaped by the society it serves, and by external forces. The tenure system, in turn, is also one of the forces which shapes the society, in a continuing process of interaction'. 19 Accordingly, changes to land tenure introduced through legislation and case law can have serious and often unforeseen impact on society. Resource exploitation can also have dramatic consequences. The effect of these changes is only recently being acknowledged in the Pacific, where it is at last becoming the norm for social and environmental impact studies to be carried out as part of development proposals and reviews. 20 However, these studies cannot wind back the clock or, it would seem, stem the tide of commercialisation of large areas of land. B The Legal System Former colonies and protectorates of the United Kingdom have inherited the common law system. 21 However, in the Pacific, most countries gave constitutional recognition to customary law, which was added to the formal, common law sources of law at independence. 22 The Constitution declares itself to be supreme law 23 with 18 Joel Bonnemaison "Social and Cultural Aspects of Land Tenure" in Larmour (ed), Land Tenure in Vanuatu, above n 1, See further, Crocombe and Meleisea, above n 11, Ch The draft of a new constitution for Solomon Islands provides for impact studies to be carried out before any development proceeds: Federal Constitution of Solomon Islands Bill cl Non-common law jurisdictions include the Overseas Territories of France, eg, New Caledonia and Easter Island. Vanuatu inherited both common law and civil law. See further Jennifer Corrin "Bedrock and Steel Blues: A Study of Legal Pluralism in Vanuatu" (1998) 24 (1 & 2) Commonwealth Law Bulletin See for example, Constitution of Solomon Islands 1978 Sch 3, para 3(1); Constitution of Samoa 1960, Art 111(1); Constitution of Vanuatu 1980, Art 47(1). See further, Jennifer Corrin Care "Conflict between Customary Law and Human Rights in the South Pacific" Vol 1 Commonwealth

7 282 LAND LAW AND JUDICIAL GOVERNANCE legislation ranked next highest in order of priority. Beneath this level, the hierarchical structure starts to unwind. This can be illustrated more specifically by reference to the legal system of Solomon Islands. Where there is no Act of Solomon Islands' parliament covering a situation, United Kingdom Acts of general application may apply. 24 In theory, UK Acts and customary law are on par, but in practice, the legislation is likely to prevail. There is also provincial law in the mix, which comes in the form of Ordinances 25 and operates within Provincial boundaries. 26 Matters within the legislative competence of provincial governments include both land and land use. 27 The other source of law is common law and equity. The Constitution states that customary law is to prevail over English common law and equity. 28 Whilst this provision is often ignored in some areas of law, in land matters it is bolstered by legislative provision stating that customary land is to be dealt with in accordance with customary usage. 29 In any event, an hierarchical approach ignores the fact that for many people customary law is far more relevant, and the contents of the Constitution and statutes are a mystery. 30 This is particularly the case in the rural sector and especially in relation to personal laws and land matters where, even during the colonial era, customary law has continuously been allowed to govern. 31 Deep legal Law Conference Papers, Kuala Lumpur: Commonwealth Lawyers Association, September 1999, Constitution of Solomon Islands 1978 s Constitution of Solomon Islands 1978 Sch 3, para Provincial Government Act 1997 (SI) s 30(1). 26 Provincial Government Act 1997 (SI) s 31(2). 27 Provincial Government Act 1997 (SI) s 26 and Sch Constitution of Solomon Islands 1978 Sch 3, para 2(1)(c): 'the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as in their application to any particular matter, they are inconsistent with customary law applying in respect to the matter'. See also, Kasa v Biku (Unreported, High Court, Solomon Islands, Muria CJ, 14 January 2000), available via at [2000] SBHC Land and Titles Act Cap 133 (SI) s 239(1). 30 See Jennifer Corrin Care "Wisdom and Worthy Customs: The Role and Operation of Customary Law in the South Pacific" (2002) 80 Reform 31, 34. Compare K v T and KU [ ] SILR See for example, in relation to Solomon Islands and Vanuatu, Kenneth Brown Reconciling Customary Law and Received Law in Melanesia (Charles Darwin University Press, Darwin, 2005)

8 CUSTOMARY LAND IN SOLOMON ISLANDS: A VICTIM OF LEGAL PLURALISM 283 pluralism, 32 in the sense of an ideological commitment to and equal acknowledgment of customary and State law may assist in the development of a more appropriate approach to the demands of plurality. 33 III CUSTOMARY LAND TENURE About 83% of the land in Solomon Islands is still customary. The Land and Titles Act, 34 originally enacted in 1968, acknowledges that customary land is governed by customary law. 35 The main problem today in the Solomon Islands is that customary usage is not a universally accepted body of rules or practice. Customary law is, by its very nature, flexible and there are particular variations in customary land tenure. The difficulties are exacerbated by the lack of homogeneity of custom. The differences in practices between Melanesian and Polynesian communities are particularly acute, but even amongst the Melanesians there is great diversity. In some parts of the country, such as Guadalcanal and Makira, the land system is matrilineal, whereas in others, such as Malaita and Choiseul, it is patrilineal. 36 Accordingly, it is difficult to be precise about exactly what is demanded by the rules of customary usage. 37 However, there are similarities in the way that land is regarded, including the religious importance of land and the use of geographical features to identify boundaries. Land is normally held by a group or community who are linked by a combination of blood relationships, 38 by residence and by contribution to village enterprise. This land-holding group differs in size from a family, to a village, to a larger line, clan or tribe. Each group is usually represented by a male member or members, who make decisions relating to land by virtue of their political status in the local community. 39 Inheritance is the main method of land transfer. The 32 For a discussion of the meaning of deep legal pluralism see John Griffiths "What is Legal Pluralism?" (1986) 24 Journal of Legal Pluralism, 15; Gordon Woodman "Legal Pluralism and the Search for Justice" (1996) 40 Journal of African Law, Peter Sack "Legal Pluralism: Introductory Comments" in Peter Sack and Elizabeth Minchin (eds) Legal Pluralism (ANU, Canberra, 1986) Cap 133 (SI). 35 Land and Titles Act Cap 133 (SI) s 239(1). 36 John Ipo "Land and Economy" in Hugh Laracy (ed) Ples Blong Iumi: Solomon Islands, the Past Four Thousand Years (Institute of Pacific Studies, University of the South Pacific, 1989) 121, Ibid at Ibid at 123. See, eg, Fugui v Solmac Construction Company Limited [1982] SILR 100 at See further Ron Crocombe "Overview" in Ron Crocombe (ed) Land Tenure in the Pacific (3rd ed, University of the South Pacific, Suva, 1987) 7, 14.

9 284 LAND LAW AND JUDICIAL GOVERNANCE methods of allocating houses and garden sites, the sort of tools and techniques used to cultivate land, and the means of settling land disputes often share commonalities. 40 Whether or not transfer of land to outsiders was allowed under customary law is a matter of debate. 41 However, the Land and Titles Act 42 now provides that, subject to limited exceptions discussed below, only Solomon Islanders are permitted to own an interest in customary land. 43 IV LEGISLATION RELATING TO LAND Legislation governing land in Solomon Islands is spread across a wide range of disparate Acts. This section outlines the principal legislation, with the emphasis on provisions relating to customary land. It looks at key problems arising from the legislation and from its interaction with customary law and discusses the case law in which this has been highlighted. The legislation governing resolution of customary land disputes is discussed separately in the next main section of this chapter. A The Constitution The Constitution states that 'the natural resources of our country are vested in the people and the government of Solomon Islands'. 44 By implication, therefore, all land is vested in Solomon Islanders or the Government, holding it on their behalf. The Constitution restricts the holding of a perpetual estate, which is the nearest equivalent to freehold, to Solomon Islanders. 45 It also guarantees the right to freedom from deprivation of property. 46 While it does allow for compulsory acquisition of land, this may only be done in the public interest and is subject to certain conditions. 47 The Constitution envisages that statutory provision will be made to ensure that there are prior negotiations with the 'owner' prior to 40 Above n 28, at See, eg, Kenneth Brown "The Language of Land: Look Before You Leap" (2000) 4 Journal of South Pacific Law. 42 Cap 133 (SI) s 239(1). 43 Land and Titles Act Cap 133 (SI) s 241(1). A Solomon Islander is defined as 'a person born in Solomon Islands who has two grand-parents who were members of a group, tribe or line indigenous to Solomon Islands': Land and Titles Act Cap 133 (SI) s Constitution of Solomon Islands 1978 Preamble. 45 Constitution of Solomon Islands 1978 s Constitution of Solomon Islands 1978 s Constitution of Solomon Islands 1978 s 8.

10 CUSTOMARY LAND IN SOLOMON ISLANDS: A VICTIM OF LEGAL PLURALISM 285 acquisition; that the 'owner' has access to independent legal advice; and that, if possible, the interest acquired is limited to a fixed-term interest. 48 No such legislation appears to have been passed, although the Land and Titles Act does provide for notice to be given 49 and for the Provincial Secretary to assist any person requesting assistance to draw up any documents required in relation to acquisition proceedings. 50 The Constitution also states that, in making provision for the application of laws (including customary laws), Parliament has a duty to 'have particular regard to the customs, values and aspirations of the people of Solomon Islands'. 51 A similar phrase, 'provision for the application of customary laws', appearing in an earlier part of the Constitution, 52 has been interpreted widely as encompassing any legislation, 53 rather than laws designed specifically to govern application of laws. 54 Consequently, legislation, including legislation governing customary land, passed without reference to 'customs, values and aspirations of the people' might be open to challenge on the basis that it is unconstitutional. To date this argument does not appear to have been raised before the courts. B Land and Titles Act The Land and Titles Act 55 consolidates the law on land tenure, acquisition and registration. It deals with both customary and alienated land. The Act was drafted to deal with the changes that were made to land tenure at independence. Accordingly, some of the provisions, are spent or outdated. For example, the Act provided for interests of over 75 years held by non-solomon Islanders immediately prior to independence to be converted to interests of 75 years. 56 The Act is silent on the legal position when these fixed-term estates and leases expire. It is unclear 48 Constitution of Solomon Islands 1978 s Land and Titles Act Cap 133 (SI) s Land and Titles Act Cap 133 (SI) s Constitution of Solomon Islands 1978 s 75(2). 52 Constitution of Solomon Islands 1978 s 15(5)(d). 53 Tanavalu v Tanavalu (Unreported, High Court, Solomon Islands, Awich LJ, 12 January 1998), available via at [1998] SBHC 4. See further Jennifer Corrin "Negotiating the Constitutional Conundrum: Balancing Cultural Identity with Principles of Gender Equality in Post Colonial South Pacific Societies" (2006) The Indigenous Law Journal, See eg the Custom Recognition Act 2000, which makes provision for proving customary law before a court. It has not yet become law. 55 Cap 133 (SI). 56 Land and Titles Act Cap 133 (SI) s 100 and 101.

11 286 LAND LAW AND JUDICIAL GOVERNANCE whether these interests will roll over or whether compensation for improvements must be paid if they do not. As opposed to alienated land which is required to be registered under a Torrens type system, 57 the Act provides for customary land to be dealt with in accordance with customary law. The relevant provision states that: 58 The manner of holding, occupying, using, enjoying and disposing of customary land shall be in accordance with the current customary usage applicable thereto, and all questions relating thereto shall be determined accordingly. As highlighted by this section, the Act avoids the use of the term 'ownership' and this is in accordance with the view of customary land as being held communally, rather than individually. The Act goes on to provide that 'every transaction or disposition of or affecting interests in customary land shall be made or effected according to the current customary usage applicable to the land concerned'. 59 As mentioned above, the Act provides that only Solomon Islanders are permitted to own an interest in customary land. 60 Customary land may not be transferred or leased to a non-solomon Islander unless that person is married to a Solomon Islander or inherits the land and is entitled to an interest under customary law. 61 Apart from transactions permitted by customary usage between Solomon Islanders, the only dealings with customary land that are authorised are compulsory acquisitions for public purposes 62 or leases to the Commissioner of Lands or a Provincial Assembly. 63 It is not clear whether licences allowing non-islanders to use the land are permitted, but as 'no person other than a Solomon Islander may hold or enjoy any interest of whatsoever nature in, over or affecting customary land', 64 it would appear not. However, a licence may be regarded as falling short of an 'interest' and, in practice, licences are often granted. 57 Land and Titles Act Cap 133 (SI) s 109 and Land and Titles Act Cap 133 (SI), s 239(1). 59 Land and Titles Act Cap 133 (SI) s Land and Titles Act Cap 133 (SI) s 241(1). A Solomon Islander is defined as 'a person born in Solomon Islands who has two grand-parents who were members of a group, tribe or line indigenous to Solomon Islands': Land and Titles Act Cap 133 (SI) s Land and Titles Act Cap 133 (SI) s Land and Titles Act Cap 133 (SI) s Land and Titles Act Cap 133 (SI) s Land and Titles Act Cap 133 (SI), s 241(1).

12 CUSTOMARY LAND IN SOLOMON ISLANDS: A VICTIM OF LEGAL PLURALISM 287 The Land and Titles Act does not expressly state who owns the land below high water mark. This has given rise to problems as members of the customary community almost invariably regard the foreshore, reefs and seabed as part of customary land, 65 whereas the common law presumes that the area below high water mark belongs to the Crown. 66 The position is complicated by the fact that, as with other types of 'ownership' of customary land, 'ownership' of foreshore and reefs may be multi-layered, with a number of interests co-existing at the same time. Unfortunately, the two most recent High Court cases to consider this issue are in conflict. In Allardyce v Laore, 67 Ward CJ held that the issue was governed by the common law, and that this meant that 'land covered by water' did not include the seabed and that therefore the seabed could not be part of native customary land. However, he did recognize that 'some customary rights can exist over the sea and such customary rights can supplant the common law position'. 68 In the more recent case of Combined Fera Group v The Attorney General, 69 Palmer J took a more liberal approach. His Lordship traced the evolution of the definition of land through the Lands and Titles legislation. In an early version of the Act 'land' was defined as including areas covered by water but not the sea at mean low water. In 1964, this definition was amended and the reference to the land covered by sea at mean low water was omitted. On this basis, Palmer J reasoned that land covered by water was now capable of including the seabed, and could vest in the Commissioner of Lands as public land. His Lordship considered that this raised a strong presumption in favour of the view that the seabed could also become part of customary land. The court held that the 'cut off' date for establishing a claim of current customary usage was 1st January 1969, when the current Land and Titles Act came into effect. If land which formed part of the seabed was customary land as at that date, then it could not have vested in the Commissioner of Lands. 65 Interview with Marovo Chiefs (Marovo Lagoon, Solomon Islands, 18 June 2008). 66 See, eg, Attorney-General v Chambers [ ] All ER Rep 941; Attorney-General v Chambers [ ] All ER Rep 559; Southern Centre of Theosophy Inc v South Australia [1982] AC 706; Allardyce v Laore [1990] SILR 174; Waleilia v Totorea (Unreported, Magistrates Court (Auki), Solomon Islands, May 1992); Combined Fera Group v Attorney General (Unreported, High Court, Solomon Islands, Palmer J, 19 November 1997), available via < [1997] SBHC [1990] SILR See also Waleilia v Totorea (Unreported, Magistrates Court (Auki), Solomon Islands, May 1992). 69 (Unreported, High Court, Solomon Islands, Palmer J, 19 November 1997), available via < [1997] SBHC 55.

13 288 LAND LAW AND JUDICIAL GOVERNANCE The latest High Court decision in Combined Fera Group v The Attorney General, 70 was followed recently by the Magistrates Court in a land acquisition appeal. 71 It was held that 'the evidence of customary practices and continuous use or occupation established the right to permanent communal [right of use] and right of ownership on the land below high water mark'. 72 These cases also highlight the importance of proving customary law. The Act contains specific provision on point, providing that a court may take judicial notice of current customary usage after enquiry by reference to 'books, treatises, reports (whether published or not), or other works of reference'. 73 This is one of the few provisions in Solomon Islands that deals with the manner of proof of custom. The Customs Recognition Act 2000, which has not been brought into force, also allows the court to take judicial notice after inquiry, but extends the sources of reference to 'statements by Provincial Governments or Chiefs (whether published or not)'. 74 It also relaxes the rules of evidence and allows both hearsay and opinion evidence as to the existence and nature of customary law. 75 Over the past eight years there have been several attempts to amend the Land and Titles Act. The Land and Titles (Amendment) Bill 2003 updated the Act and provided for a Land Board to take over the responsibilities of Commissioner of Lands. That Bill was redrafted as the Land and Titles (Amendment) Bill 2006, and is now the Land and Titles (Amendment) Bill 2010, but is unlikely to be passed in the current sitting. Meanwhile, a more radical revision was encompassed in the Land and Titles (Amendment) Bill 2005, which was endorsed by Cabinet but not passed. As discussed in the next main section of this chapter, this provides for customary land disputes to be resolved through traditional systems. C Customary Land Records Act The Customary Land Records Act 76 was enacted in 1994 to provide a mechanism for recording customary land boundaries and the names of land-holding 70 (Unreported, High Court, Solomon Islands, Palmer J, 19 November 1997), available via < [1997] SBHC Tafisi v Attorney-General (Unreported Magistrates Court, Solomon Islands, Maina J, 2 July 2009). 72 (Unreported Magistrates Court, Solomon Islands, Maina J, 2 July 2009) Land and Titles Act Cap 133 (SI) s 239(2). 74 Customs Recognition Act 2000 (SI) s 5(2)(a). 75 Customs Recognition Act 2000 (SI) s 5(1). 76 Cap 132.

14 CUSTOMARY LAND IN SOLOMON ISLANDS: A VICTIM OF LEGAL PLURALISM 289 groups and their representatives for the purposes of any dealing with recorded land. The Act provided for the establishment of an office of National Recorder, a Central Land Record Office and provincial Land Record Offices. In the late 1990s an office was established, some appointments made and some initial awarenessraising carried out. Unfortunately, the office was burnt down shortly afterwards during the tensions, 77 and it has not been re-established. One recording project was carried out, but this was not entirely in compliance with the legislation. 78 There seems to be a general misunderstanding about the processes under the Act. It does not result in registration, but only in 'recording'. This 'record' does not confer any formal title on any individual or group, but rather identifies the leaders with authority to deal with the land and delineates agreed boundaries and tribal links. A 'record' seems unlikely to be accepted by a lender as security and is certainly not transferable to non-solomon Islanders, as it is still customary land and therefore subject to the bars on dealings referred to above. The Act does give an option for the representatives identified under the recording process to apply for the recorded land to be registered, but this then leads back to the Land and Titles Act under which the only way to register land is by a process of alienation. The result of this registration is that the land is no longer classified as customary land, but rather that the landowners are given a perpetual estate. 79 The lack of an avenue for customary communities to formalise their land tenure in a way that is accepted under the formal law is a significant problem. It often prevents them from enforcing their rights against other communities and outsiders. There is anecdotal evidence that some communities are considering using the timber rights process (discussed in the next section) to identify rights in relation to land. 80 This is a very dangerous course of action as a logging company which invested time and money in the process will expect a timber rights agreement to come out of it, and will be unlikely to back away after reaching that stage. 77 The 'tensions' is the name commonly used to describe the civil unrest in Solomon Islands which began in See further Jonathen Fraenkel The Manipulation of Custom: from Uprising to Intervention in the Solomon Islands (2004, Pandanus Books, Sydney). 78 Inadequate Land Laws Slow Work on Aluta, Solomon Times Online, 6 July2007, < accessed 12 May Land and Titles Act Cap 133 (SI) s This anecdotal evidence comes from the Marovo area of Solomon Islands where the author has been conducting research as a member of an interdisciplinary team funded by the Macarthur Foundation.

15 290 LAND LAW AND JUDICIAL GOVERNANCE D Forest Resources and Timber Utilisation Act Forestry is governed by the Forest Resources and Timber Utilisation Act. 81 This statute provides a complex process leading to the grant of a timber licence. It sets up a process for determination of the persons entitled to grant timber rights to third parties and for the negotiation and finalisation of a timber rights agreement. The statute was enacted to by-pass the problems that had arisen in getting permission to log customary land. It provides a process for identifying those entitled to grant 'timber rights' in respect of customary land. In effect, it divorces land 'ownership' from the right to negotiate and dispose of timber. Under the original scheme the initial determination was made by the area council. 82 That power is now exercised by the Provincial Executive. Unlike the Land and Titles Act, the Forest Resources and Timber Utilisation Act uses the term 'ownership' together with the associated term, 'landowners' in places. 83 This is a careless mistake, 84 particularly as the relationship between timber rights 'owners' and customary 'landowners' is not specified in either Act. One thing that is clear is that those entitled to grant timber rights are not necessarily the same as those entitled to broader rights. This was recognised by Ward CJ in Tovua v Meki 85 when he said: [T]he Forest Resources and Timber Utilisation Act as amended, sets up a procedure whereby anybody wishing to acquire timber rights over customary land can identify the people with whom to deal. The procedure identifies persons to represent the group as a whole. Once the procedure has been followed, the people named by the area council are the only people entitled to sign an agreement to transfer those rights and that are clearly, as the parties to the agreement, the people to whom the royalties should be paid. I have no way of knowing, on the evidence before me, whether the persons identified by the Area Council as entitled to grant timber rights have that entitlement because they are landowners or because they have some secondary rights and neither can I question their decision on that. 81 Cap 40 (SI). 82 Forest Resources and Timber Utilisation Act Cap 40 (SI) s 8, prior to amendment by the Forest Resources and Timber Utilisation (Amendment) Act 2000 (SI). 83 See, eg, s 9 (1). 84 See further Jennifer Corrin "Customary Land and the Language of the Common Law" (2008) Common Law World Review [1988/89] SILR 74, 76.

16 CUSTOMARY LAND IN SOLOMON ISLANDS: A VICTIM OF LEGAL PLURALISM 291 The Forest Resources and Timber Utilisation Act also sets up a mechanism to deal with disputes arising in connection with timber rights agreements. Resolution of disputes is discussed in the next main section of this chapter. Failure to distinguish 'ownership' from rights existing in customary law in the Forest Resources and Timber Utilisation Act has lead to injustice, which is unlikely to be solved unless a totally new scheme of legislation is introduced. 86 The Forests Act 1999 was passed by Parliament, but has not yet been brought into force. In the meantime, a more comprehensive Bill has been drafted, which aims to introduce a methodical approach to forestry management. Whilst retaining the reference to 'ownership', the Forests Bill 2010 would be an important advance, as it requires the preparation of a 'Statement of Customary Ownership' as a prerequisite to a 'Forest Access Agreement'. It also requires a 'Determination of Potential Forest Uses' and includes National and Provincial Forest Policies and a Code of Practice. However, this Bill has not yet been tabled in Parliament. 87 E Mines and Minerals Act The Mines and Minerals Act 88 vests all minerals 'in or under all lands' in 'the people and the Government of Solomon Islands'. 89 The use of phrase 'all lands' makes it clear that mineral deposits 'in or under' customary land are included. However, this is not accepted by customary communities, which regard such deposits as part of the customary land. The Act establishes a Minerals Board 90 and regulates mining licences, permits and leases. 91 The only agreement that the customary Chiefs may enter into is the grant of surface access rights, which give permission to third parties to enter onto customary land to access minerals from the surface See further, Jennifer Corrin "Abrogation of the Rights of Customary Land Owners by the Forest Resources and Timber Utilisation Act" (1992) 8 Queensland University of Technology Law Journal 131, There are political reasons for this as there are vested interests at stake. Many MPs have interests in the logging industry or associated with those who have such interests. See further Judith Bennett Wealth of the Solomons (University of Hawaii Press: Honolulu, 1987). 88 Cap 42 (SI), in force 1 March Section Section Part III (permits), Part IV (licences), Part V (leases). 92 Section 21.

17 292 LAND LAW AND JUDICIAL GOVERNANCE F River Waters Act The River Waters Act 93 prohibits diversion of rivers and provides for inspectors to gain access to inspect rivers. However, the Act only applies to rivers declared by ministerial order to be under its protections. To date, only six rivers have been made the subject of the Act. 94 Many rivers run through or form the boundaries of customary land and the legal position regarding their use is often ambiguous. 95 As with other customary laws, the rules vary from area to area and different rights attach to different parts of the river. However, generally speaking it would appear that communities on opposite sides of rivers that form boundaries have equal rights of access from their own side, and upstream communities are not permitted to cut off the water supply of those downstream. In recent times, problems have arisen from customary communities demanding money for the use of water resources. These situations do not appear to be covered by customary rules or the rules are sufficiently unclear. A new Water Act was proposed in the early 2000s to deal with demands on the increasing water supply due to development, but this does not appear to have progressed further. V OTHER RELEVANT LEGISLATION A Town and Country Planning Act The Town and Country Planning Act 96 came into force in It provides for control and development of land and local planning schemes. The object of the Act is to ensure that land developed and used in accordance with properly considered and informed policies that are directed at promoting the welfare of Solomon Islanders and other residents. 97 A number of areas, including Honiara, Gizo Town, Tulagi, Munda and Noro, 98 have been declared as local planning areas, with the consequence that they may be the subject of a local planning scheme. However, to date no customary land has been made the subject of any local planning scheme. 93 Cap 135 (SI). 94 LN 146/1967; LN 95/1969; LN 65/1974; LN110/1976; LN 8/ Talasasa v Paia [ ] SILR Cap 154 (SI). 97 Section LN63/1980; 41/1981; 48/1981; 11/1982.

18 CUSTOMARY LAND IN SOLOMON ISLANDS: A VICTIM OF LEGAL PLURALISM 293 B The Protected Area Bill 2010 The Protected Area Bill 2010 provides for the establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity and similar matters. Like the proposed amendments to the Land and Titles Act, the Bill does not appear to be a government priority. VI RESOLUTION OF CUSTOMARY LAND DISPUTES Uncertainties arising from the unsatisfactory legislative regime and conflicting case law have contributed to the large number of customary land disputes. From the time of first settlement, when cash was brought into the equation, land disputes have been increasingly common. Things have now reached a stage where these disputes have soured many intra and inter-tribal relationships and the courts' attempts at resolution dominate the law reports. A vexed issue is how these disputes should be dealt with. At the village level, disputes are still sometimes resolved through traditional processes, which differ from place to place and depending on the nature of the dispute. In the case of disputes between different communities or in areas where there is no strong, recognised customary authority, parties are resorting to the formal courts. Originally, customary land disputes went straight to the Local Court. However, in 1985 the process was changed and disputes must now be referred initially to the traditional Chiefs. 99 A party who is dissatisfied with the Chiefs' decision may then lodge a claim with the Local Court. From there, appeal lies to the Customary Land Appeal Court. Parties may then appeal to the Magistrates Court and from there to the High Court. There is then a final appeal, to the Court of Appeal. This section examines the existing process and then considers the proposal to introduce a new forum, the Tribal Land Dispute Resolution Panel. A The Chiefs and Local Courts Provision was made in 1942 for Native Courts, 'constituted in accordance with the native law or customs of the area in which the court is to have jurisdiction'. 100 These courts were established by warrant, on a piecemeal basis, starting in They were designed to provide a forum to deal with minor disputes arising within the geographical area in which they were established on the basis of the customary law which applied in that locality. 102 The name of the courts was changed to Local 99 Local Courts Act Cap 19 (SI) s Native Courts Act 1942 (SI), now Local Courts Act Cap 19 (SI), s Local Courts Act, Native Court Warrant 1943 (SI). 102 Native Courts Act Cap 46 (SI) ss 6 and 10.

19 294 LAND LAW AND JUDICIAL GOVERNANCE Courts in the lead up to independence due to the negative connotations of the word 'native'. 103 In 1977 there were 42 Local Courts operating throughout the country in all areas apart from Honiara, and the Eastern islands of Tikopia and Anuta. 104 By 1999 this number had declined to thirty-three, and although a Local Court had been set up the Honiara it was not operating. 105 At the height of the tensions the Local Courts ceased to function at all and they are still largely inactive. The Act provides for each court to be constituted in accordance with the law or custom of the area in which it has jurisdiction, with the proviso that the Chief Justice may prescribe the constitution. 106 In practice, the constitution of each court has been specified by the Chief Justice in the warrant establishing it. 107 It usually consists of a President, one or more Vice-Presidents, and two or more Justices. The court may sit to hear a case provided that at least three Justices are present. 108 Each court must also have a clerk appointed to it by the Chief Justice, 109 although absence of the Clerk does not render the court improperly constituted. 110 Local Courts have exclusive jurisdiction to deal with all proceedings of a civil nature affecting or arising in connection with customary land other than: matters expressly excluded by the Land and Titles Act; and questions as to whether land is or not customary land. 111 The Local Courts are sometimes described as 'customary'. However, this is only true in the sense that it is intended that they administer customary law, 112 as they are not traditional forums. Despite this fact, Local Courts are in a better position to 103 Constitution (Adaption and Modification of Existing Laws) Order 1978 (SI), Sch. 104 Tabunwati Takoa and John Freeman 'Provincial Courts in Solomon Islands' in Guy Powles (ed) Pacific Courts and Legal Systems (USP, Suva, 1988) 73, Jennifer Corrin "Courts in Solomon Islands" [1999] LAWASIA Journal Local Courts Act Cap 19 (SI), s The proviso to s 3 of the Local Courts Act Cap 19 (SI) empowers the Chief Justice to prescribe the constitution of any local court. The only Local Court to have a female justice appointed is the Honiara Local Court. 108 See Warrants establishing the local courts, eg Warrant establishing the Honiara Local Court, LN 48/86 and LN54/ Local Courts Act Cap 19 (SI) s Kela v Aioro (Unreported, High Court, Solomon Islands, Palmer J, 26 September 1997). 111 Land and Titles Act Cap 133 (SI), s 254(1). 112 For example, Vanuatu's Island Courts are subject to the following procedural rules: Island Courts (Civil Procedure) Rules 2005, Island Courts (Court Clerks) Rules 2005, Island Courts (Criminal Procedure) Rules 2005, and Island Courts (Supervising Magistrates) Rules 2005.

20 CUSTOMARY LAND IN SOLOMON ISLANDS: A VICTIM OF LEGAL PLURALISM 295 deal with customary matters than the formal courts. This was recognised by the High Court itself in To'ofilu v Oimae 113 where Palmer J said: the Local Court is far better placed than the Magistrates' Court or this Court to deal with such claims [as the repayment of bride price] in custom in that it is comprised of Court Justices who come from the same Province and sometimes from the same areas, and are therefore familiar with the customary practices of the parties. In 1985, a landmark piece of legislation, the Local Courts (Amendment) Act 1985, attempted to shift decisions on customary land back into the traditional sector. The amending Act provided that before a land dispute could be lodged with the Local Courts it had to be shown that: the dispute has first been referred to the Chiefs; all traditional means of resolving the dispute have been exhausted; and the Chiefs have made no decision wholly acceptable to both parties. 114 This attempt to address the lack of customary legitimacy in the dispute resolution process. by returning decision-making power on customary land matters to traditional leaders had much to recommend it. However, it has not been successful for a number of reasons. First, unsuccessful parties have been unwilling to abide by the Chiefs' decision and the majority of cases have been taken on appeal. This has led to an increase in litigation rather than a reduction. There have also been difficulties in ascertaining the identity of the 'Chiefs' in some areas of the country. Changes in customary society and practices have given rise to uncertainties as to the 'true' Chiefs. The Act does not define 'Chiefs', no doubt regarding this as a matter of customary law. 115 In fact, 'Chief' is a generic term used commonly to, refer to traditional leaders. In some places, the word 'Elder' is used instead of Chief. 116 Each local language has its own word for Chief and, in some areas, things are complicated by the fact that there are different types of Chiefs. Each is known by a different name, for example, in some parts of Malaita, there are people with special 113 (Unreported, High Court, Solomon Islands, Palmer J, 19 June 2007), available via < at [1997] SBHC Local Courts Act Cap 19 (SI) s On a visit to Marovo Lagoon in 2009 the author was asked what the definition of Chiefs was in the Act, as the Chiefs wanted to make sure they were doing things 'legally'. 116 The Provincial Government Act 1986 (SI) s 30, referred to both 'Chiefs and elders'.

21 296 LAND LAW AND JUDICIAL GOVERNANCE responsibility for land (called 'fata'abu'). 117 The problem of identifying the appropriate 'Chiefs' is illustrated by the case of Lauringi v Lagwaeano Sawmilling and Logging Limited. 118 In that case, the plaintiffs had been determined to be the customary 'landowners' by the Marodo Council of Chiefs and this decision had been confirmed by the Malaita Local Court. However, the defendants refused to accept the decision of the Local Court and challenged the jurisdiction of the Marodo Council of Chiefs on the basis that the members did not meet the definition of Chiefs in the area where the land was situated. An interim injunction was granted by the High Court to restrain the defendants from continuing a logging operation on the land while the matter went on appeal to the Customary Land Appeal Court. 119 There is no published record of that appeal having been heard and it is unclear whether the matter has been resolved. A serious problem lies in the fact that the Local Courts are mostly inoperative and there is a backlog of cases to be heard. 120 In 2006 there were said to be about 100 cases waiting to be heard in Nggella alone. 121 This is mainly due to lack of resources, but also due to other reasons including the fact that the register of justices is out of date, due to old age, death or departure of existing members. Also, some Chiefs are reluctant to deal with land disputes as they regard the current sitting allowance as inadequate and feel that the ability of an unsuccessful disputant to ignore their decision and go on to the Local Court often means that the effort expended is all for nothing. B The Appeal Process An appeal lies from a Local Court to the Customary Land Appeal Court (CLAC). From the CLAC appeals lead to the common law courts. Appeal lies first as of right to the High Court, but only on the grounds of error of law (which does not include a point of customary law) or failure to comply with any procedural 117 Solomon Islands Law and Justice Sector Institutional Strengthening Program, Report on the Feasibility of Removing the Administration of Land Disputes from the Local Court and Establishing a Tribunal for that Purpose, July 2003, (Unreported, High Court, Solomon Islands, Lungolo-Awich J, 28 August 1997). See also Muna v Holland and Attorney-General (Unreported, High Court, Solomon Islands, Kabui J, 28 March 2002), available via < [2002] SBHC (Unreported, High Court, Solomon Islands, Lungolo-Awich J, 22 February 2000). 120 In 2003 there were estimated to be 239 cases waiting to be heard by the Local Court and 109 appeals waiting to be heard by the CLAC: Solomon Islands Institutional Strengthening of Land Administration Project, Report on the Feasibility of Removing the Administration of Land Disputes from the Local Court and Establishing a Land Tribunal for that Purpose, July 2003, Honiara, 101. Anecdotal sources suggest that the number is much higher. 121 Communication with Chiefs, Halavo Village, 16 June 2006.